Fixed-term contract restrictions and new Sex Discrimination Act obligations now in effect

19 December 2023

The new changes to fixed-term contract requirements, as well as new obligations for employers under the Sex Discrimination Act (Cth), have now come into effect.

Provided below is a summary:

Fixed-term contracts

From 6 December 2023, fixed and maximum term contracts greater than 2 years (as a single contract or in aggregate) or more than 2 successive fixed or maximum term contracts (regardless of length) will be prohibited with the exceptions being:

  • if permitted under a modern award;
  • distinct tasks requiring specialised skills;
  • training arrangements;
  • cover during emergencies, peak periods or temporary absence of other employees;
  • if the remuneration is above the high-income threshold when the contract is entered; and
  • government-funded work where the funding is for more than 2 years and no reasonable prospect that funding will be renewed.

Employees entering into fixed-term contracts must be provided with a Fixed Term Contract Information Statement (including parental leave replacement employees). The Fair Work Commission (FWC) can deal with any dispute but only arbitrate by consent.

Sexual harassment positive obligation

From 13 December 2023, changes to the Sex Discrimination Act came into effect. These changes impose a positive duty on employers and persons conducting a business or undertaking to take ‘reasonable and proportionate measures’ to eliminate, as far as possible, unlawful sex discrimination (including sexual harassment) and victimisation.

From 12 December, the Australian Human Rights Commission (AHRC) will monitor and assess compliance with the positive duty and will have new powers to issue ‘compliance notices’ and enter into ‘enforceable undertakings’ with employers. Representative applications are able to be brought in Federal Courts on behalf of people who have experienced unlawful discrimination.

Sexual harassment – FWC powers

From 12 December 2023, the FWC’s powers were expanded into a new part of the Fair Work Act 2009 (Cth) (FW Act), to enhance its power to deal with claims of sexual harassment at work.

The FWC’s existing powers (introduced in November 2021) to make orders to prevent harassment from occurring (excluding compensation orders) remain unchanged, however the FW Act also now:

  • prohibits sexual harassment and empowers courts to impose penalties if it occurs; and
  • makes it an offence to contravene any FWC order made in these circumstances.

Unless the aggrieved person is seeking an injunction from a court, the person must go through the FWC process before lodging a court application. The FWC can conciliate and, by consent, arbitrate.

Contact us

If you are an Australian business or individual requiring advice on any aspect of fixed-term contracts or understanding your obligations with changes to the Sex Discrimination Act, please contact our Workplace Relations team.

Disclaimer: This publication contains comments of a general nature only and is provided as an information service. It is not intended to be relied upon, nor is it a substitute for specific professional advice. No responsibility can be accepted by Rigby Cooke Lawyers or the authors for loss occasioned to any person doing anything as a result of any material in this publication.

Liability limited by a scheme approved under Professional Standards Legislation.

©2023 Rigby Cooke Lawyers